An Update on Waking Up to Reality and Coming Down to Earth.

Though it’s the least beneficial of the various bills which have been proposed, one of the sentencing reform bills proposed in this session of Congress has been passed out of committee and has some chance of passing.

The bill would significantly narrow the category of prior drug convictions which enhance drug sentences, allows safety valve relief for defendants with more criminal history, and allows the enhanced 18 U.S.C. § 924(c) sentence for “second or subsequent” convictions only when the first conviction was sustained prior to the new offense.

Because most of the amendments in the bill will apply to offenses already committed, you should consider delaying sentencing in cases where the amendments would be beneficial to your client.

NOW THE BLOG:

Last year, I put up several posts about sentencing reform legislation that was successively less beneficial but still an improvement over today’s sentencing, at least in many respects. (See “If You Really Want to Dream, . . . ,” “If You Want to Do Even More Dreaming, . . . ,” and “Waking Up to Reality and Coming Down to Earth” in the July 2015, August 2015, and October 2015 links at the right.) One of the bills – I’m afraid the least helpful – was recently passed out of committee and actually has some chance of passing Congress. It’s the proposal by Senator Grassley discussed in the last of the prior posts, which has the title of “Sentencing Reform and Corrections Act of 2015.” Both the bill as originally presented to the Judiciary Committee and amendments to be proposed by the Committee are attached – here and here.

I summarized what I thought were the most significant provisions of the bill in the October 2015 “Waking Up to Reality and Coming Down to Earth” post, so all I’ll add here is a discussion of how, if at all, those provisions will be changed by the amendments to be proposed by the Committee. The amendments on the positive side include the following:

• The category of prior drug convictions which can support a 21 U.S.C. § 851 enhancement is further limited by requiring that the prior conviction have been sustained within 15 years of commencement of the new offense.
• The provision broadening eligibility for safety valve relief to allow up to 4 criminal history points so long as the defendant has no 3-point offenses and no 2-point drug trafficking or violent offenses is further broadened in two ways. First, it’s broadened by excluding 1-point offenses from the 4-point total allowed. Second, it’s broadened by making the only 2-point offenses that disqualify the defendant violent offenses, so 2-point drug trafficking offenses are not disqualifying.
• Two of the requirements for what I described as the half step toward safety valve relief for other offenders – the provision reducing 10-year mandatory minimums to 5-year mandatory minimums even when the defendant doesn’t satisfy the foregoing criminal history point requirements – are eased. First, that the defendant “exercise[d] substantial authority or control over the criminal activity of a criminal organization, regardless of whether the defendant was a member of such organization” is no longer a disqualifier. Second, being an importer, exporter, wholesaler, or manufacturer is disqualifying only if the defendant was not a minor or minimal participant.
• A proposed expansion of the prior convictions that can support an enhanced sentence for second or subsequent convictions under 18 U.S.C. § 924(c) to include prior state convictions for crimes of violence involving carrying, brandishing, or using a firearm is eliminated, so the prior conviction still has to be a prior 18 U.S.C. § 924(c) conviction.

There are some amendments that make the bill worse, however, or at least make it less good. The two most significant are:

• The reduction of the mandatory minimum sentence for a second or subsequent 18 U.S.C. § 924(c) conviction which was proposed in the original bill is eliminated, so the enhanced mandatory minimum will remain at 25 years.
• The reduction in the Armed Career Criminal Act mandatory minimum from 15 years to 10 years which was proposed in the original bill is eliminated, so that mandatory minimum will also remain unchanged.

So once again, it’s a bit of a mixed bag. Still, there is some good. Given the possibility this bill might actually pass, and the provisions for retroactive application of some of the changes, you may want to consider delaying sentencing. And keep on dreaming about even better things.

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About the Blog

Shortly before I moved on after 28 years of work as a Federal Public Defender, one of the younger attorneys I had the honor to mentor forwarded me an e-mail he’d received from an Assistant United States Attorney. The e-mail complained that my younger colleague was being extremely frustrating, that my colleague was making far too much of a “simple little case,” that the client in the case was going to be deported no matter what, and that my colleague was forcing the prosecutor to “expend a tremendous amount of effort” on what the prosecutor characterized as a “silly issue.” He ended his e-mail by asking, “Have you been hanging out with Carl Gunn?”

Some people would have been insulted by this, but I felt rather proud. Making as much as we can out of what the government sees as “simple little cases,” litigating issues despite the government’s view that they might be “silly,” and “expend[ing] a tremendous amount of effort” on behalf of clients who have the full weight of the government thrown up against them – often with the government’s view that the case is open and shut, or “simple” – is our calling as public defenders and defense attorneys. We all have our different reasons for doing it, but it’s a crucial task – for our clients, our system, and ourselves. As Sir Thomas More was said to say in “A Man for All Seasons” in response to his future son-in- law’s exclamation that he’d “cut down every law in England” to get at the devil: “Oh, and when the last law in England was down and the Devil turned round on you – where would you hide, Roper, all the laws being flat?”

I’m proud if “hanging out with Carl Gunn” means not just accepting the government’s view that cases are “simple” and “little,” that issues are “silly,” and that we shouldn’t expend resources on our clients. Hence the name of this blog: “Hanging out with Carl Gunn.” I hope to offer some thoughts and ideas that the government may think are “silly,” but I respectfully don’t; that you can use in cases that the government may think are “simple,” but aren’t so simple when looked at more critically; and that are an entirely appropriate way to expend our resources. And in the spirit of this being a “hanging out” together, there might be guest bloggers from time to time with their “silly” ideas to offer. I hope you find some of the ideas on this blog helpful and offer whatever comments you might have to add to them.